Burklow & Associates, Inc. v. Belcher

• Decision Date: 17 September 1998
• Docket Number: No. 97-1739,97-1739
• Citation: 719 So.2d 31
• Parties: , 23 Fla. L. Weekly D2170 BURKLOW & ASSOCIATES, INC. d/b/a Mel's Marina, Appellant, v. Reagan BELCHER, James Bosso, Steve Brown, et al, Appellees.
• Court: Florida District Court of Appeals

Page 31

719 So.2d 31

1999 A.M.C. 337, 23 Fla. L. Weekly D2170

BURKLOW & ASSOCIATES, INC. d/b/a Mel's Marina, Appellant, v. Reagan BELCHER, James Bosso, Steve Brown, et al, Appellees.

No. 97-1739.

District Court of Appeal of Florida First District.

Sept. 17, 1998.

Rehearing Denied Oct. 16, 1998.

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola and Robert G. Kerrigan of Kerrigan, Estess, Rankin & McLeod, Pensacola, for Appellant.

C. Miner Harrell and Tracey Scalfano Witt of Wilson, Harrell & Smith, P.A., Pensacola, for appellee Reagan Belcher.

Richard A. Strickland of Strickland & Molhem, P.A., Tampa, for appellees James Bosso and Alvin E. Sommerer.

Belinda B. deKozan of Fuller, Johnson & Farrell, P.A., Pensacola, for appellees Steve Brown, Chriss Family Trust and George Underwood.

Robert P. Gaines of Beggs & Lane, Pensacola, for appellees Tandy Little and John Wicks.

Stephen T. Holman, Pensacola, for appellee Lee Clements.

W.H.F. Wiltshire of Harrell, Wiltshire, P.A., Pensacola, for appellee Philip Miller.

H. Vance Smith of Smith Clark Delesie Bierley Mueller & Kadyk, Tampa, for appellee Chris Ferrara.

John B. Trawick of Shell, Fleming, Davis & Menge, Pensacola, for appellee Chris Tingle.

BARFIELD, Chief Judge.

The appellant, a marina owner, filed a complaint against the owners of sixteen boats stored at the marina for damages which were allegedly caused by their failure to move the vessels from the marina before Hurricane Opal moved ashore at Santa Rosa Sound in October 1995. It now challenges a trial court order dismissing its complaint as barred by section 327.59, Florida Statutes (1995). We affirm.

Appellant's complaint alleged that the boat owners breached their dry storage and wet slip lease contracts by failing to "exercise due care in the occupation and use of the marina premises" when each of them "chose to ignore Plaintiff's requests to move their vessel from the marina during the days before Hurricane Opal, despite the fact that there was adequate time to safely do so, with knowledge that leaving their vessel docked in Plaintiff's marina would likely cause extensive economic damage to innocent third parties" and by failing to "pay MEL'S MARINA for damage that each Defendant's vessel caused to the docks, pilings, bulkhead, utility lines and other property located at Mel's Marina." It also alleged that the boat owners were negligent by making "the deliberate election not to move their boats from the marina, but instead to put Plaintiff's marina and adjacent property owners at risk," when they "were specifically advised, and the information was well publicized, that a hurricane was developing in the Gulf of Mexico and that Gulf Breeze, Florida was well within the reasonable range of probable landfall sites for that hurricane." The boat owners filed motions to dismiss, asserting, inter alia, that the suit was barred by section 327.59, which provides:

(1) After June 1, 1994, marinas may not adopt, maintain, or enforce policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watch or warning, in order to ensure that protecting lives and safety of vessel owners is placed before interests of protecting property.

(2) Nothing in this section may be construed to restrict the ability of the owner of a vessel or the owner's authorized representative to remove a vessel voluntarily from a marina at any time or to restrict a marina owner from dictating the kind of cleats, ropes, fenders, and other measures that must be used on vessels as a condition of use of the marina.

Appellant challenges the trial court's order dismissing its complaint with prejudice, which found that section 327.59 "bars plaintiff's actions as plead for breach of contract and negligence against all defendants" and that the "allegations of joint and several liability of all defendants for breach of contract are not supported by the terms of the contract or by applicable law," and which noted that plaintiff's counsel "expressed at the hearing that the Court's decision to grant a dismissal should be with prejudice because plaintiff was not able to amend its pleading to include allegations other than what was originally pleaded."

By enacting section 327.59, the Florida Legislature has expressly stated its public policy "to ensure that protecting lives and safety of vessel owners is placed before interests of protecting property" when a hurricane approaches by defining the standard of care required to be exercised in that situation by a boat owner whose vessel is stored at a marina in Florida. Under the statute, the boat owner has no duty to move the vessels from the marina following the issuance of a hurricane watch or warning. ¹

Sua sponte, we ordered the parties to file supplemental briefs addressing the following issues:

1. Whether this action is within the admiralty jurisdiction of Article III, Sec. 2, cl. 3 of the United States Constitution?

2. Whether federal maritime law applies to the decision in this case?

3. Whether application of section 327.59, Florida Statutes (1995), is preempted by federal maritime law?

4. Whether, prior to enactment of section 327.59, the owner of a boat which was lawfully docked at a marina under a valid slip lease agreement that did not require removal of the boat in the event of a hurricane threat owed a duty to the marina owner to remove his boat upon the request of the marina owner during the period prior to issuance of any hurricane watch or warning?

Before addressing our resolution of these issues in the instant case, we deem it appropriate to make several observations. Tort and contract actions arising out of the storing and maintaining of boats in a marina on navigable waters are within the admiralty jurisdiction, see Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). Concurrent with federal district courts, state courts have jurisdiction over in personam admiralty actions, see Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). However, federal maritime substantive law controls in such an action, unless the matter is one which has great local significance and the state law to be applied does not threaten the uniformity of federal maritime law (the "maritime-but-local" doctrine, which seeks accommodation between federal and state interests). See Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921).

The elements of a maritime negligence cause of action are essentially the same as the elements of common law negligence, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). In determining the existence of the first such element (a duty under the law to conform to a particular standard of conduct in order to protect others against an unreasonable risk of harm), the court must balance the probability of an occurrence causing injury to others, the potential extent of the injury, and the expense and effort of adequate precautions to avoid the occurrence. See The Charles H. Sells, 89 F.2d 631 (2d Cir.1937). See also, Rodi Yachts, Inc. v. National Marine, Inc., 984 F.2d 880 (7th Cir.1993); Complaint of Paducah Towing Co. Inc., 692 F.2d 412 (6th Cir.1982); United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.1947). The standard of conduct is that of the reasonably prudent person under similar circumstances, taking into account the risk apparent to the person upon whom the duty is imposed (including any duty to investigate the risk of harm to others), the social value of the interest threatened and of the interest which the person is seeking to protect, the ability of the person to avoid the perceived risk, and the circumstances in which the person is required to act. See United States v. Carroll Towing Co.; Restatement (Second) of Torts §§ 283, 289-93 (1965). The standard of conduct required of a reasonable person may be established by a legislative enactment. Restatement (Second) of Torts §§ 285-86 (1965).

Having considered the briefs submitted by the parties and the results of our own research, we find that the instant action is within the admiralty jurisdiction and that federal maritime law applies. We further find that section 327.59 is not preempted by federal maritime law, because the issue addressed by the statute, protection of the lives and safety of persons during the threat of a hurricane, is a matter of paramount local concern to the citizens of Florida and because the statute does not threaten the uniformity of federal maritime law, which does not specifically address the issue of evacuation of marinas in the face of a hurricane threat.

The complaint in the instant action did not specify whether a hurricane watch or warning had been issued when the marina owner requested the boat owners to move their vessels from the marina. It is therefore necessary for us to determine whether, regardless of section 327.59, the owner of a boat which is lawfully docked at a marina, under a valid slip lease agreement that does not require removal of the boat in the event of a hurricane threat, owes a duty to the marina owner to remove his boat upon the request of the marina owner during the period prior to issuance of any hurricane watch or warning. We have found no statutory or case law imposing such a duty on the boat owner in that situation. ² We can identify no logical reason to impose such a duty, in light of the insufficient probability, actual or apparent, at any time prior to issuance of an official hurricane watch or warning, of a...